Tuesday, February 09, 2010

Prison for Whistleblowers

By Mike Dorf

Last week, in a column and accompanying blog post, Sherry highlighted a peculiar Kansas law/interpretation of law, under which force in self-defense is legal but the threat of force is not. File this post under "anything Kansas can do, Texas can do weirder."

Yesterday's NY Times carried the story of a nurse who is being prosecuted for reporting on a doctor with whom she worked who was, she said, operating unsafely and unethically. The weird part: Even though she appears to be legally protected against firing, suspension and "other adverse personnel action" by a Texas whistleblower protection law, nurse Anne Mitchell is now facing a criminal trial for "misuse of official information" for reporting the doctor's missteps to the medical board.

The Times story presents the case as more of a contradiction than it necessarily is. The whistleblower law only protects reports in good faith, and the prosecution in the criminal case, it appears, will have to prove that Nurse Mitchell acted with the sort of malice that could not be the product of good faith. Even for a bad faith report, criminal prosecution seems rather harsh--a kind of criminal defamation action--but it's not inconsistent with the Texas whistleblower protection law, as suggested by the Times story. Truthful whistleblowers are protected against retaliation and, tacitly at least, protected against criminal prosecution as well.

Suppose the law were otherwise, however. Would it ever make sense to protect whistleblowers against job-based retaliation while permitting criminal prosecution? Sure. We might imagine that the law would give whistleblowers an incentive to blow the whistle, even while permitting prosecution for illegal conduct that produced the underlying information. For example, a person who broke into his boss's home where he discovered evidence that the boss was taking bribes or submitting false expense reports would be protected against firing or other job-related retaliation for the disclosure of the boss's wrongdoing but would not be shielded against prosecution for the break-in.

In practice, however, the possibility of criminal prosecution--even if for conduct revealed by the whistleblowing though not for the whistleblowing itself--will have a very substantial chilling effect on whistleblowing. So even if criminal prosecution for related conduct is theoretically consistent with protection against retaliation for whistleblowing, few people who fear prosecution for underlying conduct that led to, and will be revealed by, their whistleblowing, will be sufficiently protected by a whistleblower protection law to actually blow the whistle.